The above-entitled case having been
heard before the undersigned Administrative Law Judge pursuant to
the Statute and the Rules and Regulations of the Authority, the
under-signed herein serves his Decision, a copy of which is
attached hereto, on all parties to the proceeding on this date and
this case is hereby transferred to the Federal Labor Relations
Authority pursuant to 5 C.F.R. § 2423.26(b).

PLEASE BE ADVISED that the filing
of exceptions to the attached Decision is governed by 5 C.F.R. §§
2423.26(c) through 2423.29, 2429.21 through 2429.25 and
2429.27.

Any such exceptions must be filed
on or before

NOVEMBER 22,
1995, and addressed to:

Federal Labor Relations
Authority

Office of Case Control

607 14th Street, NW, 4th
Floor

Washington, DC
20424-0001

____________________________

GARVIN LEE OLIVER

Administrative Law Judge

Dated: October 23, 1995

Washington, DC

MEMORANDUM DATE: October
23, 1995

TO: The Federal Labor Relations
Authority

FROM: GARVIN LEE OLIVER

Administrative Law Judge

SUBJECT: AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 2419,
AFL-CIO

Respondent

and Case No.
WA-CO-50021

JAMES J. POWERS

Charging
Party/

An
Individual

Pursuant to section 2423.26(b) of
the Rules and Regulations, 5 C.F.R. § 2423.26(b), I am hereby
transferring the above case to the Authority. Enclosed are copies
of my Decision, the service sheet, and the transmittal form sent to
the parties. Also enclosed are the transcript, exhibits and any
briefs filed by the parties.

Enclosures

UNITED
STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

OFFICE OF ADMINISTRATIVE LAW
JUDGES

WASHINGTON, D.C.
20424-0001

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 2419,
AFL-CIO

Respondent

and

JAMES J. POWERS

Charging Party/
An Individual

Case No. WA-CO-50021

Michael J. Schrier

Mark D. Roth (On the Brief)

Counsel for the
Respondent

Susan L. Kane

Thomas F. Bianco

Counsel for the General
Counsel, FLRA

Before: GARVIN LEE
OLIVER

Administrative Law
Judge

DECISION

Statement of the Case

The unfair labor practice complaint
alleges that Respondent(Union or AFGE,
Local 2419) violated sections 7102, 7116(b)(1), 7116(b)(8), and
7116(c) of the Federal Service
Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7102,
7116(a)(1), 7116(b)(8), and
7116(c),when it
expelled the Charging Party, Mr. Powers, from membership on July 8,
1994 for conducting himself at a meeting on March 9, 1994, in a
manner that violated Article XVIII, section 2(a) of the Union's
National Constitution.

AFGE, Local 2419 contends that the
Authority lacks jurisdiction over this case, as the matter involves
internal union discipline under section 7120 of the Statute, and
any complaint of violation of section 7120 should be filed with the
Assistant Secretary of Labor. The Union claims that, assuming the
Authority has jurisdiction to hear this matter, the Union's actions
in disciplining its former Treasurer for advocating a secession
from AFGE were well within the established parameters of labor
law.

For the reasons set out below, a
preponderance of the evidence does not establish the alleged
violations.

A hearing was held in Washington,
D.C. AFGE, Local 2419 and the General Counsel were represented by
counsel and afforded full opportunity to be heard, adduce relevant
evidence, examine and cross-examine witnesses, and file
post-hearing briefs. The Union and General Counsel filed helpful
briefs. Based on the entire record, including my observation of
the witnesses and their demeanor, I make the following findings of
fact, conclusions of law, and recommendations.

Findings of Fact

On July 8, 1994, AFGE, Local 2419,
the exclusive repre-sentative of a unit of employees at the
National Institutes of Health, advised the Charging Party,
bargaining unit employee James J. Powers, that he was expelled from
Union membership for actions he took that violated Article XVIII,
Section 2(a) of the National Constitution. Mr. Powers was advised
that such action was taken as a result of a trial committee
recommendation and a vote of the membership to uphold that
recommendation.

At all times material herein, Mr.
Powers was a member of AFGE, Local 2419 until his July 8, 1994
expulsion. Mr. Powers had also been Treasurer of AFGE, Local 2419
from about 1993 until he resigned his office on or about March 23,
1994.

The AFGE National Constitution,
referenced by the Union, provides in Article XVIII, Section
2:

Charges may be preferred for
conduct detrimental or inimical to the best interests of the
Federation. Offenses against this Federation include the
following:

(a) Advocating, encouraging or
attempting to bring about a secession from the Federation of any
local or of any member or group of members. Penalty for conviction
under this sub-paragraph shall be expulsion.

The Union had previously furnished
Mr. Powers a copy of the relevant sections of the Constitution,
advised him on

May 24, 1994 that members of the
Local had brought charges against him for conducting himself in a
manner that violated Section 2(a) at a meeting on or about March 9,
1994, and that a trial would be held by the Union in his case on
July 5, 1994.

AFGE, Local 2419 held a trial
committee hearing as scheduled on July 5, 1994, at which evidence
supporting

the charges under Article XVIII,
Section 2 was submitted.

Mr. Powers did not testify or
otherwise participate in the Union trial and never responded to or
disputed, in either a written or oral manner, the charges against
him. He did not pursue internal Union procedures to appeal his
expulsion from the Union.

The complaint in this case also
relates Mr. Powers' expulsion from the Union to his activities at a
meeting in early March 1994. Paragraph 9 of the Complaint
alleges:

On or about March 1, 1994, the
Charging Party attended a meeting where he and other bargaining
unit employees signed a paper indicating whether they were
satisfied with the Respondent and expressed their opinions
concerning, among other things, their satisfaction with the
representation they had received by the Respondent.

At the hearing in this case, Mr.
Powers, on behalf of himself and the General Counsel, and Mr.
Douglas Duane Welch, on behalf of the Respondent, gave firsthand
testimony concerning Mr. Powers' actions at the meeting in
question.

Mr. Welch testified that he gave
essentially the same testimony at the Union disciplinary hearing of
Mr. Powers.

The record reflects that on or
about March 9, 1994, bargaining unit employee Michael McClain, who
was not a member of AFGE, Local 2419, conducted a meeting with
other bargaining unit employees in the maintenance shop of the
power plant. About 25 employees attended. McClain began the
meeting by

showing the employees a folder with
a letter he had written. The letter read, in pertinent part, as
follows:

I have observed in the plant that
there is an abundance of conversation going on about the union
representation that we are receiving, both good and bad. So I
started wondering to myself what are the pros and cons of having
the union at all. So what I am in the process of doing is to take
a poll to see what the majority of DES feelings are.

On the attached page is a
survey/vote being taken by myself to see what your feelings are.
Please sign

and date next to your personal
opinion on keeping the union.

McClain also passed around a piece
of paper with a "Yes" column written on the one half of the paper
and a "No" column written on the other half of the paper. Mr.
Powers and a majority of the other employees present signed the
"No" column of the survey. Mr. McClain did not inform the
employees that he intended to use the signatures in connection with
a formal petition to decertify the Union.1518407747

Some employees spoke in favor of
the Union during the meeting, but most spoke against the Union.
Some of the criticism of the Union was quite strong.

Mr. Welch, a bargaining unit
employee who was a Union steward at the time of the meeting (and
later became Union Treasurer when Mr. Powers resigned the
position), testified that Mr. Powers spoke in favor of Mr.
McClain's ideas and "went on to expound on the fact that he didn't
think the [U]nion had the benefit of the men in mind. They had
their own agenda and it may be better to get rid of the [U]nion,
AFGE. He said that while unions were fine, he would lean more
towards. . . sheetmetal, you know, boilermakers, another union
instead of AFGE. . . . Mr. Powers was very vocal about the point
that he thought it would be a wise decision to get rid of 2419 and
get somebody else." (Tr.81)

Mr. Powers denied that he used the
term "get rid of

the Union." He testified that he
signed the "No" side of

Mr. McClain's form to indicate his
displeasure with the

Union, but did not encourage anyone
else to sign the survey. Mr. Powers acknowledged that he spoke of
his dissatisfaction with the direction the Union negotiations were
going, and that he answered a question, "[W]hat [do] you do without
. . . the [L]ocal or the [U]nion as it is?" Mr. Powers testified
that his answer was, "[Y]ou can have another union come in. You
can [have] personnel take care of you. . . . [T]here's a lot of
things that can be done." (Tr. 112-13).

Based on my observation of the
witnesses and their demeanor, the entire record, and the arguments
of counsel concerning the credibility of the witnesses, I credit
the testimony of Mr. Welch concerning Mr. Powers' actions at the
March 9, 1994 meeting. Mr. McClain's cover letter also clearly
indicated that he was taking a poll to see what the feelings of the
majority were concerning "the pros and cons of having the union at
all" and asked employees to "sign and date next to your personal
opinion on keeping the union." Mr. Power's original and amended
unfair labor practice charges also all state, "The subject of the
meeting was to discuss dissolution of the AFGE Union within the
bargaining unit." Therefore, I do not find, as urged by the
General Counsel, that all Mr. Powers did at the March 1994 meeting
was to express his dissatis-faction with the Union and sign a
survey reflecting that opinion. (Tr. 12, General Counsel's brief at
9-10).

On or about March 23, 1994, Mr.
Powers resigned his office as Treasurer of AFGE, Local 2419 of his
own volition.

Approximately two or three weeks
after the meeting, Richard A. Laubach, President, AFGE, Local 2419,
asked

Mr. Powers to remove his signature
from McClain's survey and to sign a survey that he (Laubach) had
prepared. Laubach's survey stated that the signatories effectively
withdrew their signatures from McClain's survey. Laubach told
Powers that it was unbecoming a Union officer to sign McClain's
survey. He also told Powers that nothing would be done if he
removed his signature from McClain's survey. Powers replied that
he would not sign Laubach's survey. Laubach then said that he
would do what he had to. Powers did not remove his signature from
McClain's survey. The Union's disciplinary action
against

Mr. Powers, as set forth above,
followed.

At least one other Union official,
Mike Scafone, signed the "No" column of McClain's survey, but he
also signed

Mr. Laubach's survey on or about
April 29, 1994. There is no evidence that Mr. Scafone spoke at the
March 1994 meeting in the like manner of Mr. Powers or that he was
disciplined by the Union.

Discussion and
Conclusions

The issues for determination are
(1) whether the Authority has jurisdiction over this case, (2) if
so, whether the Union violated section 7116(b)(1) of the Statute by
expelling

Mr. Powers from membership in the
Union for exercising his rights under section 7102 of the Statute,
and (3) whether the Union violated section 7116(c) and 7116(b)(8)
of the Statute by expelling Mr. Powers from membership in the Union
for reasons other than failure to meet reasonable occupational
standards or to tender dues.

We recognize that under section
7116(c) of the Statute, a labor organization may discipline its
members pursuant to procedures contained in its constitution or
bylaws. In most cases, that discipline is not and should not be
reviewed by the Authority. Contrary to the Union's position,
however, the Union's ability to enforce discipline is not
unlimited. Indeed, section 7116(c) itself

recognizes that a union's actions
must be consistent with the Statute. . . .

. . . .

. . . To threaten to discipline a
member for the exercise of a right the member has under section
7102 is inconsistent with section 7102 and, therefore, beyond the
legitimate interests of a union to regulate its internal
affairs.

Therefore, contrary to the Union's
position, I conclude that the Authority has jurisdiction to
determine whether the Union's disciplinary action against Mr.
Powers interfered with his

Section 7102 of the Statute
guarantees to each employee of the Federal Government the right,
freely and without fear of penalty or reprisal, to form, join, or
assist a labor organization, or to refrain from any such activity,
and to be protected in the exercise of such right. A labor
organization's interference with these rights is an unfair labor
practice under section 7116(b)(1).

The record reflects that Mr.
Powers, then a Treasurer of AFGE, Local 2419, at an employee
meeting on March 9, 1994, signed a paper which could reasonably be
interpreted as a "No" vote on "keeping the union" and "was very
vocal about the point that . . . it would be a wise decision to get
rid of 2419 and get somebody else." I conclude that Mr. Powers'
conduct in this respect was not protected activity and the Union
had reasonable grounds to bring a disciplinary enforcement action
against him. As noted above, Article XVIII, Section 2 of the
Union's Constitution provides:

Charges may be preferred for
conduct detrimental or inimical to the best interests of the
Federation. Offenses against this Federation include the
following:

(a) Advocating, encouraging or
attempting to bring about a secession from the Federation of any
local or of any member or group of members. Penalty for conviction
under this sub-paragraph shall be expulsion.

InAmerican Federation of Government Employees, Local 1920,
AFL-CIO, 16 FLRA 464, 477
(1984)(AFGE,Local 1920), the Authority adopted the decision of the Administrative
Law Judge, holding that a union steward was not engaged in
protected activity when he "talked to two stewards . . . and
attempted to sell them on the idea of bringing in the International
Fire Fighters Union because it would represent them better than
AFGE." The Authority agreed with the Judge that the union did not
violate section 7116(b)(1) of the Statute when it removed the union
steward from his position where a preponderance of the evidence
established that the union, even in the absence of the steward's
protected activity of giving testimony at an Authority hearing,
would have removed the employee because of his efforts to promote
acceptance of a rival union. SeealsoAmerican Federation of Government Employees, Local
987,

4 A/SLMR 510 (1974) (Union's efforts
to have member discontinue distributing dues revocation cards did
not violate the analogous section, section 19(b)(1), of Executive
Order 11491, which governed labor relations in the Federal sector
before the enactment of the Statute. The Assistant Secretary
stated, "In my view, a labor organization is entitled to protect
itself from those acts of its members which threaten its continued
existence." (footnote omitted))

Since the evidence does not show
that the Union's disciplinary action was initiated because Mr.
Powers engaged in protected activity, the Union's use of procedures
under its constitution and bylaws to determine whether Mr. Powers
should be expelled did not violate the Statute. Whether the
disciplinary procedures themselves were consistent with the
Statute, as required by section 7116(c), and, therefore, whether
Mr. Powers received "fair and equal treatment under the governing
rules of the organization and . . . fair process in [the]
disciplinary proceedings," as required by section 7120, are matters
within the jurisdiction of the Assistant Secretary of Labor for
Labor Management Relations under section 7120(d) of the Statute and
are not subject to review here. See

For the purpose of this chapter it
shall be an unfair labor practice for an exclusive representative
to deny membership to any employee in the appropriate unit
represented by such exclusive representative except for
failure-

(2) to tender dues uniformly
required as a condition of acquiring and retaining
membership.

This subsection does not preclude
any labor organization from enforcing discipline in accordance with
procedures under its constitution or bylaws to

the extent consistent with the
provisions of this chapter.

The General Counsel contends that
the Union, by expelling Mr. Powers from membership for his actions
during the March 1994 meeting, violated 7116(c) by denying
membership to

Mr. Powers for reasons other than
his failure to meet reasonable occupational standards or failure to
tender dues.

The Authority has held that a union
commits unfair labor practices by summarily denying a bargaining
unit employee's application for membership in the union, when the
union's reason for the denial was neither of the only two
permissible

grounds for such a denial under
section 7116(c). American Federation of
Government Employees, Local 2344, AFL-CIO,

45 FLRA 1004
(1992)(Local 2344),review denied, No. 92-1560 (D.C. Cir., November 3, 1994) (union violated
section 7116(c) by refusing to admit to membership an employee who
publicly vowed to destroy the union "from the inside");American Federation of Government Employees,
Local 987, Warner Robins, Georgia,46 FLRA
1048 (1992)(Warner
Robins),enforced, 15 F.3d 1097 (1994)(union
violated section 7116(c) by denying membership until employee's
financial discrepancies were cleared up). The Authority
recognized, however, that once an employee is admitted to
membership, the employee is subject to discipline by the union for
misconduct consistent with the requirements of section 7116(c).
Local 2344, 45
FLRA at 1011;Warner
Robins, 46 FLRA at 1056-57.

Mr. Powers was a member and the
Treasurer of AFGE,

Local 2419 at the time of his
alleged misconduct. He did not file an application for union
membership that was summarily denied in violation of section
7116(c). Rather, Mr. Powers was expelled from union membership
pursuant to the Union's authority to enforce discipline as clearly
permitted by the last sentence of section 7116(c).

It is concluded that a
preponderance of the evidence does not establish that AFGE, Local
2419 violatedsections 7102, 7116(b)(1),
7116(b)(8), and 7116(c) of theStatute, as
alleged.

Based on the above findings and
conclusions, it is recommended that the Authority issue the
following Order:

ORDER

The complaint is
dismissed.

Issued, Washington, DC, October 23,
1995

________________________________

GARVIN LEE OLIVER

Administrative Law Judge

CERTIFICATE OF SERVICE

I hereby certify that copies of
this DECISION issued by GARVIN LEE OLIVER, Administrative Law
Judge, in Case

No. WA-CO-50021, were sent to the
following parties in the manner indicated: